Immigration policy is mine field of controversial issues. Programs to
legally permit low skilled foreign nationals to work in the same labor
market as U.S. citizens and permanent resident aliens are among the most
explosive. Because such endeavors have been undertaken in the past, they
have a track record. They have been the subject of extensive research. There
is no need to speculate about what might happen if any new such venture
—such as that proposed by the Bush Administration on January 7 , 2004— were to
be enacted. The outcome can be predicted.

The origin of guestworker policy in the United States and its historic role
has been as a national emergency program. During World Wars I and II as well
as the Korean Conflict, extensive reliance was made of such endeavors.
Guestworker programs were included among other extreme policies such as wage
and price controls and the relaxing of antitrust laws used by policymakers
during times of national peril. They are extraordinary policies to be used
as a last resort —and then only as temporary measures. Unlike the other
extreme measures that were quickly abandoned after the wars were over,
however, guestworker programs have proven to be difficult to end. Starting
such programs has always been far easier than stopping them. Moreover, they
all had unintended negative consequences that must be included in any
assessment of such programs.

The First Bracero Program. Only months after Congress enacted the most
restrictive immigration legislation it had ever adopted up until that time —the
Immigration Act of 1917, the first publicly sanctioned foreign-worker program
was initiated. Responding to strong pressure from agricultural growers of the
Southwest, the Immigration Act of 1917 contained a provision granting entry to
“temporary” workers from Western Hemisphere nations who would otherwise be
considered inadmissible. The Secretary of Labor was authorized to exempt such
persons (in this instance, Mexicans) from the ban on immigrants over the age of
sixteen who could not read.

In May 1917, with
the nation officially at war with Germany, a temporary farmworker program
for unskilled Mexican workers was created. It was later expanded to permit
the employment of some of these laborers in nonfarm work. When the program
was announced, a number of rules and regulations were set forth. Ostensibly,
these rules were designed to protect both citizen workers and Mexican
workers and to ensure that the Mexicans returned to their country when their
work was completed. As soon became apparent, however, “these elaborate rules
were unenforced.”

This temporary-worker program was established during World War I .The war
ended in 1918, but the program was extended until 1922. In later years the
program came to be referred to as “the first bracero program.” The term
bracero is a corruption of the Spanish word brazo, which means “arm.”
(Literally, the term means “one who works with his arms.”) The program was
terminated in 1922 because it could no longer be justified as a national
defense policy. Organized labor contended that the program had undermined
the economic welfare of citizen workers. Other critics argued that labor
shortages no longer existed in the and but greedy employers wanted the
program to continue so that they could continue tota a cheap source of
docile workers. During the life span of the program, 76,862 Mexican workers
were admitted to the United States. Of this number only 34,922 returned to
Mexico.

With the advent of World War II, the military manpower requirements of the
United States and the related need for laborers in manufacturing led to
assertions that another labor shortage existed in the nation’s agricultural
sector. Growers in the Southwest had foreseen these developments before the
attack on Pearl Harbor in 1941. They had made two fateful decisions: first to
again tap the pool of cheap labor in Mexico in order to fill the alleged
manpower deficit; and second, to ask the federal government to again serve as
the vehicle of deliverance. The initial request in 1941 for the establishment of
a new contract labor program was denied but by mid-1942 the federal government
had come to favor the program. The government of Mexico, however, balked at the
prospect. In the 1940s the Mexican economy was flourishing. Mexican workers
feared that they might be drafted if they went to the United States; they had
bitter memories of the efforts to “repatriate” Mexicans in the 1930s; and they
were aware of the discriminatory treatment accorded people of Mexican ancestry
throughout much of the American Southwest.

Negotiations between the two governments
ultimately resulted in a formal agreement. In August 1942 the Mexican Labor
Program —more commonly-known as
the bracero program— was created by the U.S. Congress. Originally included
within an omnibus appropriations bill known as Public Law 45 (P.L. 45), this
program was extended by subsequent enactments until 1947. According to P.L.
45, braceros were permitted to work only in the agricultural sector. If they
were found working in any other industry, they were subject to immediate
deportation. Although the agreement expired on December 31, 1947, it
continued informally and without regulation until 1951. In that year, under
the guise of labor shortage caused by the Korean conflict, bracero concept
was officially revived by P.L.78. This legislation was extended on three
separate occasions until the program was unilaterally terminated by the
United States on December 31, 1964.

Under P.L. 78, originally only Mexican workers could be hired. Their numbers
varied each year but averaged several hundred thousand workers. Its biggest
year was in 1959 when 439 thousand braceros were employed. Employers were
required to pay the prevailing agriculture wage, provide free housing,
provide adequate meals at a reasonable charge, and pay all transportation
cost from government reception centers near the border to the work site. As
in the earlier bracero program, these requirements often were not met.
Braceros were exempt from U.S. social security and income taxes, which meant
that they received more income than a citizen worker employed at the
identical wage rate.

In Mexico, the federal government determined the actual allocation process
by which workers would be selected from the various states. The state
governments in turn made similar decisions for their cities and other
political subdivisions. Nevertheless, there were many more applicants than
job openings in every designated labor market where recruitment occurred.
Corruption in the allocation process soon became widespread at the local
level. Potential workers often were forced to pay a mordida (a bribe;
literally, “a bite”) if they wished to be chosen.

The bracero program of demonstrated precisely how border labor policies can
adversely affect citizen workers in the United States. Agricultural
employment in the Southwest was virtually removed from competition with the
nonagricultural sector. The availability of Mexican workers significantly
depressed existing wage levels in some regions, moderated wage increase that
would have occurred in their absence, and sharply compressed the duration of
employment (i.e., income earning opportunities) for many citizen
farmworkers.

In its thorough report on the bracero program in 1952, President Truman’s
Commission on Migratory Labor found that “wages by States [for agricultural
workers] were inversely related to the supply of alien labor.” Citizen
farmworkers in the Southwest simply could not compete with braceros. The
fact that braceros were captive workers who were totally subject to the
unilateral demands of employers made them especially appealing to many
employers. It also led to extensive charges of abuse of workers by employers
as most of the provisions for the protection of braceros’ wage rates and
working conditions were either ignored or circumvented. Moreover, the
bracero program was a significant factor in the rapid exodus of rural
Mexican Americans between 1950 and 1970 to urban labor markets, where
employment and housing often were difficulty to find.

The drive to repeal Public Law 78 was led by the AFL-CIO, various Mexican
American groups, and an array of other community organizations generally
concerned with the welfare of low-income workers. The Kennedy
administration, which came into office in 1961, did not initially support
repeal of the program. Instead, it sought significant amendments to the law
which were designed to strengthen the protection of domestic workers from
the adverse effects of the program. In mid-1961 the Department of Labor
began setting an “adverse effect wage rate” for each state. These were
minimum wage rates that the department determined had to be paid to prevent
braceros from undercutting the wages of citizen agricultural workers. In
most cases, the adverse –effect wage rates were actually higher than the
prevailing wages. They had to be offered to citizen workers if the
agricultural employer also intended to hire foreign workers. Under these
terms, the bracero program became much less attractive to employers. The
bitter political struggle ended in 1963 when the program was extended for one
more year with the understanding that it would not be renewed after December 31,
1964. This was 22 years after it had been started.

Ending the formal program did not stop its consequences as thousands of former braceros
continued to come and seek jobs in southwestern agriculture, albeit as
illegal immigrants.

The British West Indies Labor Program. Following the precedent of the
Mexican Labor Program, the U.S. government established a similar
nonimmigrant program to recruit workers from the British West Indies
(Jamaican, the Bahamas, St. Lucia, St. Vincent, Dominica, and Barbados). A
intergovernmental agreement was signed in April 1943 pertaining to the
supply of agricultural workers.

The agreement became the British West Indies
(BWI) Program. The BWI program was established in response to concerns
voiced by employers along the U.S. East Coast that they , too, were
experiencing wartime manpower shortages. Because many of the potential BWI
workers spoke English, they offered an advantage to employers over the
Mexican workers recruited for the bracero program. Like the bracero program,
BWI was formalized on the basis of P.L. 45 and was operative from 1943
through 1947. In terms of aggregate number —about 19,000 workers a year—
the BWI program was small compared to the bracero program. But its impact
was substantial in the particular agricultural labor markets where these workers
were employed. Of the eleven East Coast states that participated in the program,
Florida was by far the largest recipient. During the actual war years, BWI recruits were also permitted to work in the nonagricultural
sector.

During the years 1947-1952, the BWI program was converted into a
temporary-worker program, as allowed under the provisions of the Immigration
Act of 1917. Tripartite contracts were drawn up between US employers, the
foreign workers, and the governments of the participating nations of the
West Indies. The US government was not a direct participant. Travel and
recruitment expenses were paid entirely by US employers, and the workers who
were recruited were employed only in agriculture.

A review of the BWI program by the President’s Commission on Migratory Labor
in 1951 led to condemnation of the administration of the program. The
Commission attacked the lack of “vigilance for the protection of living and
working standards” of these workers.

During the legislative debate over the continuation of the Mexican Labor
Program in 1951, East cost employers —especially those in Florida—
specifically requested that BWI workers not be included in the legislation.
The language of the bill was changed and only “agricultural workers from the
Republic of Mexico” were included. The East Coast employers preferred to
keep the BWI program as it was, and hence the program continued to function
according to the provisions of the Immigration Act of 1917.

The vastness and complexity of the U.S. labor market has also, on occasions,
led to the use of guestworker programs for low skilled workers during peace
times under certain circumstances. There are sometimes spot shortages of
labor that the normal working of a relatively free labor market cannot
easily respond. These adjustment problems are normally due to geographical
factors (i.e. isolated labor markets) or seasonal conditions (i.e., time
limits on the duration of labor demand). But even in these seemingly logical
cases, there have usually been undesirable side effects that challenge the
efficacy of their replication in the future.

The H-2 Program. In 1952, the Immigration and Nationality Act was passed.
Among its multiple provisions were the formal creation of the various entry
categories for nonimmigrants. Among these was the H-2 program for “other
temporary workers.” Initially, it was agricultural employers who made the
greatest use of the program. Its height of usage was in 1969 when over
69,000 visas were issued. In the Southwest especially, the arid nature of
the much of the land means that it is often not possible for farmworkers to
live nearby. Hence, either migrant workers who are citizens must be hired or
foreign workers be recruited to do the seasonal planting and harvesting. The
program also became popular with sugarcane growers in Florida and apple
growers in the Northeast who argued that the arduous work only existed for
short periods of time so it as difficult to attract and hold citizen
workers. But other non-agricultural workers were also sought to do various
service jobs that were of “a lower status than those entering on H-1 visas”
(i.e., temporary workers “of distinguished merit or ability”). In 1986 IRCA
split the H-2 visa into two separate temporary visas, the H-1A for
non-agricultural workers and the H-2A for agricultural workers.

Theoretically, H-2 workers can only be admitted if unemployed citizen
workers cannot be found to do the work. But the entire process of testing
labor market availability and the appropriate wage rate to be paid has been
a never-ending source of controversy. As a result (and because of the
growing availability of illegal immigrants), usage of the program has
declined significantly from the peak in 1969 although usage of H-2B visas
has been soaring in recent years.

H-2 programs have also been criticized for being forms of indentured
servitude. The participating workers are totally dependent on their
employer. They are tied to their jobs by contractual terms. For this reason
it is believed that they are preferred workers by employers if they can get
them.

The Virgin Island H-2 Program. In the 1950s the H-2 program was used on the
U.S. Virgin Islands to allow unskilled workers from various neighboring
islands to work in the agricultural and tourist industries. By the 1960,
these foreign workers were being employed “for any job” on the Islands. More
and more jobs ceased to be temporary so by the end of the 1960s H-2 workers
accounted for almost half of the entire work force. The cost of living on
the Islands is high so that citizen workers were reluctant to work for the
low wages paid to the H-2 workers. Their unemployment increased
dramatically. In the meantime, housing, education and social conditions
worsened and the H-2 program was described as being “the biggest single
problem” on the Island. As the number of H-2 workers kept increasing, there
was even fear that the native born population might lose political control
of their homeland. Efforts were made to stop the children of the H-2 workers
from attending public schools but federal courts intervened. As the Island’s
economy became dependent on H-2 workers a two tiered labor market developed.
Ultimately the program was abandoned in 1975 but most H-2 workers were
allowed to adjust their status to become permanent resident aliens because
by this time they had put down roots in their new land.

The Guam Program The Island of Guam also made extensive use of the H-2
workers. In reality, the H-2 program ratified a practice that was already
under way. Foreign workers had been recruited by defense contractors working
on the rebuilding of the economy following World War II. When the H-2
program was created in 1952, many of these workers were granted this status
even though that had been on Guam for many years. Before long a “triple wage
system” evolved: one for “state siders”; one for native born on Guam; and
the lowest wages for H-2 workers. As criticisms mounted about the H-2
workers receiving “slave wages,” the U.S. Immigration and Naturalization
Service (I.N.S.) began to phase-out the program in 1959 for non-defense
sector jobs and in 1960 for defense related jobs. But there was immense
criticism by employers of these attempts. Finally the U.S. Department of
Labor acknowledged that employers were not complying with the H-2 provisions
and that as efforts to end the program were initiated, illegal immigration
soared. Ending the program was no easy feat.

As the scale of illegal immigration was finally acknowledged as an issue of
national concern the 1970s, guestworker programs were proposed as a possible
remedy by several scholars as well as by some employer groups. Meanwhile,
President Jimmy Carter requested the National Commission on Manpower Policy
(NCMP) in August 1978 to study whether the existing H-2 provisions of the
Immigration and Nationality Act should be expanded as an alternative to
employers (especially those in agriculture) using illegal immigrants. After
lengthy study of the idea, the Commission advised the President in May 1979
that it was “strongly against” any such expansion of the H-2 program.

During this same timespan, Congress established in October 1978 the Select
Commission on Immigration and Refugee Policy (SCIRP) chaired by Rev.
Theodore Hessburgh. It was requested to study all elements of the nation’s
immigration and refugee policies and to make relevant recommendations for
changes. The notion of creating a guestworker program as a possible remedy
to illegal immigration was given intensive scrutiny but it was finally
rejected.

In follow-up hearings jointly held the subcommittees on immigrants of both
the Senate and the House of Representatives, Rev. Hessburgh carefully
explained that:

The idea of a large temporary work program is tremendously attractive.
Perhaps a better word though, would be “seductive.” There is a superficial
plausibility to this argument and the Commission gave it serious
consideration for more than a year and a half. I can recall being very much
entranced by it when I first joined the Commission. In the end, we were
persuaded, after much study, that it would be a mistake to launch such a
program.

He elaborated the reasons for its rejection as follows:

1. A large temporary worker program “would have to have some limits which
would have to be enforced. It wouldn’t be a completely open program.” Who
would be eligible? What kind of jobs can they hold? How long can they stay?
Can they renew their participation? Who is going to enforce these terms and
how capable would such a body be to perform these tasks?

2. “It is difficult to turn off such a program once it gets started.”

3. “A large program would build a dependency on foreign labor in certain
sectors of the economy.”

4. “Certain jobs would be identified with foreigners”, which would
effectively stigmatize such jobs.

5. “A second class of aliens would be established in our countries who are
not fully protected by the law and its entitlements and who could not
participate effectively in mainstream institutions.”

6. Without the strict enforcement of employers sanctions against hiring
other illegal immigrants elsewhere in the economy, a temporary worker
program “would stimulate new migration pressures in the long run, and again
we have the specter of law disrespected as we have now.”

In summing up, he concluded:

“We do not think it wise to propose a program with potentially harmful
consequences to the United States as a whole.

Responding to the SCIRP report, the Reagan Administration accepted to wisdom
of most of its conclusion but it proposed “an experimental temporary worker
program for Mexican nationals” be included in the reform legislation and, if
it proved feasible, it be expanded significantly in scale.

When Congress took up immigration reform in 1982, the sponsors of the
original bill (Senator Alan Simpson and Representative Romano Mazzoli) did
not include a temporary worker program. It did propose liberalizing the
existing H-2 program (which did not have any ceiling on the number of
workers who could be admitted). Over the ensuring five years as the various
version of what would become the Immigration Reform and Control Act worked
its way though the legislative process, no issue proved to be more difficult
or controversial then efforts to add a guestworker program for the
agricultural working to the bill. Numerous efforts were made.

Indeed, after
failing to be pass Congress in 1982 and 1984 it appeared that the
legislation would die in 1986 for this very reason. It was only after an
extremely controversial amendment was offered by Rep. Charles Schumer that
eventually would give permanent resident alien status (i.e. a greencard) to
any person who could prove he/she had worked in perishable agriculture for
90 days between May 1, 1985 and May 1, 1986.

It was, in reality a second
amnesty to the general amnesty provided for elsewhere in the legislation.
The provision set off a firestorm of protest but it was given a debate rule
that prohibited any changes in this particular provision to be made on the
House floor.

Representatives opposed to the compromise had only one choice:
kill the whole reforms package or accept this amendment as it is. It was not
the first time that such debate restrictions have been attached to a
controversial bill but it is certainly a tactic that undermines public
confidence in the legislative process. The idea could not withstand a vote
on its own merits. Despite such criticism, the amendment enabled IRCA to be
passed and signed into law by President Reagan in 1986. As a consequence, this
adjustment program —known as the Special Agricultural Workers program (SAW)— led
to 1.2 million persons applying for its adjustment of status benefits. Of these
997 thousand applications were approved.

The number of applicants far exceeded
anyone’s estimation of the number who would be eligible. The explanation for the
excess in applicants was the widespread usage of fraudulent documents that were
used to claim eligibly. Indeed the N.Y. Times described the SAW program as being “one of the most extensive
immigration frauds ever perpetuated against the U.S. government.”

Because of concern about what the impact of IRCA might be on the
agricultural industry, IRCA contained provisions to create the Commission on
Agricultural Workers (CAW) in 1986. It was chaired Henry Voss, the Director
of the California Department of Food and Agriculture. Despite being
disproportionately composed of agricultural industry representative, the
final report of CAW was remarkably frank. After 6 years of study, it
described a story whereby the living and working conditions of farmworkers
had shown little if any improvement due largely to the continuing influx of
illegal immigrants. It boldly stated that “there is a general oversupply of
farm labor nationwide” due to the fact that “unauthorized migrants continue
to cross the southern border in large numbers.” It noted:

The surplus of labor in most areas militates against improvements in wages
and working conditions for seasonal agricultural employees… Illegal immigration
has a negative effect on workers who are faced with increasing
job competition and employers who are concerned about their continuing
access to a legal labor supply.

The report stated that “employer sanctions have been ineffective” with
fraudulent documents being the major cause for their failure. Based on the
experience of the industry with SAW, the report concluded that
“worker-specific and/or industry-specific legalization programs as contained
in IRCA should not be the basis of future immigration policy.”

Within three years of the passage of IRCA, it was clear that the legislation
had not succeeded in its efforts to stop illegal immigration. Employer
sanctions, which was the “centerpiece” of the deterrent measures, were being
circumvented by the use of fraudulent documents and by inadequate
enforcement personnel and funds. Congress, rather than address there
inadequacies, ignored the issue in 1990 when it passed the Immigration Act
of 1990 that dramatically increased the annual level of legal immigration to
the country based on the assumption that the “back door” of illegal
immigration had been close. The premise was, of course, false. This
legislation did, however, create another bipartisan commission to study the
nation’s immigration system. It was given seven years (six in reality) to
conduct its investigation.

It was the Commission on Immigration Reform (CIR) and was chaired for most
of its life by the late Barbara Jordan. CIR identified illegal immigration
as the most pressing problem confronting the nation’s immigration policy and
recommended a number of policy changes. But with regard to guestworker
programs, it adamantly rejected any notion that they be viewed as part of
any solution. In its final report, CIR stated that it “remains opposed to
implementation of a large scale program for temporary admission of lesser
skilled and unskilled workers” and it went on to say specifically that “a
guestworker program would be a grievous mistake.” The Commission stated in
unequivocal terms the reasons for its conclusions:

1. “Guestworker programs have depressed wages.”

2. Those whose wages are most adversely affected are “unskilled American
workers, including recent immigrants who may have originally entered to
perform needed labor but who can be displaced by newly entering guestworkers.”

3. “ Foreign guestworkers often are more exploitable than a lawful U.S.
worker, particularlywhen an employer threatens deportation if workers
complain about wages or working conditions.”

4. “The presence of large numbers of guestworkers in particular
localities--such as rural counties with agricultural interests--presents
substantial costs in housing, healthcare, social services, schooling and
basic infrastructure that are borne by the broader community and even by the
federal government rather than by the employers who benefit from inexpensive
labor.”

5. “Guestworker programs also fail to reduce unauthorized migration.”
[because] “they tend to encourage and exacerbate illegal movements that
persist long after the guest programs end.” …[and] … “guestworkers
themselves often remain permanently and illegally in the country in
violation of the conditions of their admission.”

The reason for this lengthy statement is to document the mountainous hurdle
of opposition that confronts anyone advocating any form of temporary worker
program for foreign nationals presently outside the country or for illegal
immigrants already in the country. The actual program experience of the past
as well as the wise counsel of the distinguished Americans who served on the
host of national commissions cited in this testimony that have intensively
studied these endeavors all warn in the starkest of terms against pursuing
such programs. I know of no other element of immigration policy in which the
message not to do something is so unequivocal.

The heart of the problem is that guestworker programs seek to reconcile two
sharply conflicting goals: the need to protect citizen workers from the
competition of foreign workers who are willing to work for wages and in
conditions that few citizens would tolerate versus the wishes of some
employers who rely on labor intensive production and service techniques to
secure a plentiful supply of low cost workers. In addition, there are always
unforeseen side effects that harm the wider society.

With 34 million low-wage workers in the current civilian labor force, the
problem to confront is not a shortage of low skilled workers; it is the
oversupply of from 9-12 million illegal immigrants that needs to be
addressed. Getting illegal immigrants out of the labor force should be the
first order of business for policymakers. Neither guestworker programs or
amnesties of any kind should be part of the necessary efforts to end this
labor market nightmare.

Guestworker programs do nothing to stop further
illegal immigration and, in fact, they serve to condone past illegal
conduct. It is illegal immigration that must be stopped!

Except in national emergencies, guestworker programs are bad public policy.
They may meet the short terms pleas of private interest groups, but they can
never meet the higher standard of being public policies that serve the
national interest._____
*
United States Senate
Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, DC 20510
See original at < http://judiciary.senate.gov/testimony.cfm?id=1034&wit_id=2959
>.